Abraham v. Prime Trucking Company Doc.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION

RANEE ABRAHAM, )
)
Plaintiff, )
)
vs. ) No. 06-3425-CV-S-FJG
)
PRIME, TRUCKING CO., )
)
Defendants. )

ORDER

Currently pending before the Court is plaintiff’s Motion for Leave to Proceed in

Forma Pauperis (Doc. # 1) and Motion to Appoint Counsel (Doc. # 2). Pursuant to 28

U.S.C. § 1915(a)(1), this Court may authorize the commencement or prosecution of any

suit without prepayment of fees when an applicant files an affidavit stating that he is

unable to pay the costs of the lawsuit.

I. Motion to Proceed In Forma Pauperis

Plaintiff filed a Financial Affidavit on October 23, 2006. On November 8, 2006, the

Court asked plaintiff to submit additional financial information which she has now done.

Plaintiff states that she is single and 52 years old. Plaintiff indicates that she has no

dependents. Plaintiff lists no current employment and states that she has not worked

since September 22, 2006. She lists a previous employer, but does not list how much

income she earned from that position. Plaintiff states that she does not own any real

property nor does she have any cash on hand. She does indicate that she owns a

vehicle on which she still owes $400. She also receives $66.00 a week in

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unemployment benefits. Plaintiff lists the following expenses: $125.00 a week for rent

and utilities and $5-$10 a day for food.

Pursuant to 28 U.S.C. § 1915, this Court may authorize the commencement or

prosecution of any suit without prepayment of fees when an applicant files an affidavit

stating that they are unable to pay the costs of the lawsuit. In Martin-Trigona v. Stewart,

691 F.2d 856, 857 (8th Cir. 1982), the court noted:

There is a two step process to be followed by the district court in

considering whether a pro se plaintiff should be permitted to proceed in
forma pauperis. First, a determination of whether the plaintiff qualifies by
economic status under § 1915(a) and, if so, to permit the complaint to be
filed. Second, a determination of whether the cause of action stated in the
complaint is, under §1915([e]), frivolous or malicious and, if so, to dismiss
the complaint.

The district court must exercise its discretion in determining whether an applicant

is sufficiently impoverished to qualify under § 1915. Cross v. General Motors Corp., 721

F.2d 1152, 1157 (8th Cir. 1983), cert. denied, 466 U.S. 980 (1984). Such a showing of

poverty is sufficient if the applicant would become completely destitute or be forced to

give up the basic necessities of life if required to pay the costs of the lawsuit. Adkins v.

E.I. Du Pont De Nemours & Co., 335 U.S. 331, 339 (1948); Local Rule 83.7(a) (1999).

Based upon the information provided in plaintiff's affidavit and supplemental filing,

the Court believes that plaintiff is sufficiently impoverished to be permitted to proceed in

forma pauperis. Accordingly, plaintiff's application for leave to file this civil action in

forma pauperis (Doc. # 1) is hereby GRANTED and plaintiff may pursue this action

without prepayment of fees, costs or security. It if further ORDERED that because this

case is included in the Case Management/Electronic Case Filing system, and plaintiff is

proceeding pro se, the Clerk’s Office is directed to electronically file plaintiff’s Complaint

as of the date of this Order. It is further ORDERED that the Clerk shall forward

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appropriate process forms to plaintiff and within twenty days, plaintiff shall return the

completed summons and service forms to the Clerk’s office showing the address where

the defendant may be served. The Clerk of the Court is directed to issue summons and

process and deliver the same to the United States Marshal for service upon the

defendants. The United States Marshal may first attempt service by certified mail, return

receipt requested.

II. Motion for Appointment of Counsel

A pro se litigant has no statutory or constitutional right to have counsel

appointed in a civil case. See Wiggins v. Sargent, 753 F.2d 663, 668 (8th
Cir.1985). When determining whether to appoint counsel for an indigent
civil litigant, the district court considers relevant factors such as the
complexity of the case, the ability of the indigent litigant to investigate the
facts, the existence of conflicting testimony, and the ability of the indigent to
present his claim. See Johnson v. Williams, 788 F.2d 1319, 1322-23 (8th
Cir.1986).

Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998).

In the instant case, after reviewing plaintiff’s Complaint, the Court does not find

that the facts presented are overly complex. Additionally, plaintiff has not demonstrated

that she is unable to either investigate the facts or to present her case without the aid of

counsel. At this early stage in the litigation, the Court in unable to determine whether

this case will present conflicting testimony. For these reasons, plaintiff’s Motion for

Appointment of Counsel is hereby DENIED without prejudice (Doc. # 2). If the

circumstances change or if there is additional information which plaintiff

would like the Court to consider, plaintiff may resubmit her request for appointment of

counsel at a later time.

Date: December 6, 2006 S/ FERNANDO J. GAITAN JR.

Kansas City, Missouri Fernando J. Gaitan Jr.
United States District Judge

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